Matter of FERNANDES, 28 I&N Dec. 605 (BIA 2022)
The immigrant Fernandes, a Portuguese native and citizen, was personally served by the Department of Homeland Security (DHS) with a Notice to Appear (NTA) before an Immigration Judge at the Boston Immigration Court with a date and time “to be set.” On March 12, 2021 the Immigration Court mailed hearing information indicating that the hearing was scheduled to take place on March 18, 2021. Although Fernandes appeared in court on March 18, 2021 and at two subsequent hearings, when he appeared with his lawyer on May 6, 2021 his lawyer made an objection to the NTA because it lacked date and time information. The Immigration Judge denied the motion to dismiss based on that objection and ordered the Fernandes removed. The decision was appealed.
The Board of Immigration Appeals (BIA) decided that so long as an objection is made, either orally at a hearing or in writing, “prior to the closing of pleadings before the Immigration Judge,” the court must consider the objection. Furthermore, the respondent need not show prejudice due to the deficiency of the NTA, meaning the fact that the Fernandes was able to appear in court despite the defective NTA did not eliminate his ability to raise the objection.
“Accordingly, we will generally consider an objection to a noncompliant notice to appear to be timely if it is raised prior to the closing of pleadings before the Immigration Judge. Such an objection may be made either orally at the hearing or in writing.”
However, the BIA found the issue to be a claim-processing rule, rather than a jurisdictional rule. Therefore, this defect in the NTA will not strip the Immigration Court of its ability to hear the case. Rather, the court can grant DHS an opportunity to remedy the NTA and proceedings need not be terminated.
